OAKLAND — Both the University of California and a union representing campus police officers could claim a measure of victory on Friday in their dispute over the release of two pepper-spray reports.

Alameda County Superior Court Judge Evelio M. Grillo gave the green light to UC to release most of a task force’s report and much of a fact-finding report compiled by Kroll Associates Inc., an outside security firm hired to look into the Nov. 18 pepper-spraying and arrest of nonviolent Occupy UC Davis protesters.

However, Grillo granted a preliminary injunction sought by the Federated University Police Officers Association for portions of the reports the union contends include personnel information protected by state law.

UC attorneys argued that the reports should be released to the public in full because Kroll investigators and task force members operated separately from an ongoing internal affairs investigation.

The reports do not recommend disciplinary action and are broad in scope, UC attorneys said, and cover not just police actions but such subjects as officer training, university policy and the decisions of administrators.

The judge gave attorneys for both sides until a March 28 hearing to agree on whether disputed portions should be redacted.

When UC will release the material OK’d by the judge isn’t yet clear.

Charles Robinson, UC general counsel, said after Friday’s hearing that he would discuss how to go forward with the release of the report with Cruz Reynoso. The former California Supreme Court justice is chairing the 13-member task force of students, faculty, staff and alumni.

“We need to have some opportunity to see what the judge said in his order today — what’s in and what’s out,” Robinson said. “It may or may not make sense to release the report in a piecemeal fashion … One could imagine a circumstance under which releasing only a portion of the report would be misleading or would not provide sufficient context for people to fully understand what the findings and conclusions are.”

In a 16-page tentative ruling issued Thursday, Grillo indicated he likely would rule for UC. In Friday’s hearing, however, he did express some concerns about whether a relatively small amount of material in the reports violated the privacy rights of officers under scrutiny for possible wrongdoing.

Robinson said that “six to 10″ officers were under investigation among about 35 who took part in the clearing of an Occupy encampment on the Quad. UCD Police Chief Annette Spicuzza, incident commander Lt. John Pike and a third, unnamed officer were placed on administrative leave after the incident.

UC attorneys said they would be willing to withhold the name of the third suspended officer because of threats made to Pike after a video of him pepper-spraying protesters went viral.

Michael Risher, a staff attorney for the ACLU of Northern California, which joined the case to argue for the reports’ release, said the university must show proof of a threat to the officer’s safety or release the name.

Union attorneys focused much of their argument on the information given to Kroll investigators by officers who witnessed what took place, but who are not under investigation.

Those officers were promised immunity from discipline, UC attorneys said. In exchange, they spoke with investigators under orders from UCD’s acting police chief, Lt. Matt Carmichael.

An earlier agreement between the union and UC allowed witness officers to be interviewed. Those under scrutiny were not questioned.

“If (the witness officers) had not been granted that immunity … the acting police chief would not have been able to order them to speak to non-police investigators,” said Nancy Sheehan, an attorney for UC.

That point was disputed by union attorneys.

Michael Morguess, a union attorney, asked what the difference was between an internal affairs investigation and the work by Kroll and the task force if witness officers provide the same information to both.

“That information belongs in a personnel file,” he said.

And what difference was there between the internal and external investigations if both draw conclusions about the actions of officers — except that the officers under investigation weren’t questioned? Morguess asked.

Grillo asked if Morguess was arguing that any statement made by an officer ought to be kept from the public.

No, the union attorney said, only statements “regarding alleged misconduct about a peace officer. That’s what makes it confidential.”

Morguess said the Reynoso task force and the Kroll investigation, upon which the task force based its conclusions, were akin to civil service and citizen police review boards. Not so, said Sheehan, because neither Kroll nor the task force could recommend disciplinary measures.

She stressed the separateness of the external and internal investigations.

“The tracks may be parallel, but they do not cross,” she said.

Union attorneys said the Kroll report intersperses a narrative account of what took place with judgments about the actions taken by police. It’s not always clear whether those conclusions are based on officer comments that the union holds should be confidential, they said.

Grillo asked how the union attorneys could object to anything being gleaned from a photo that had been seen worldwide.

“It’s not the picture itself that would be (in violation of the law), it’s the commentary that concerns us,” Morguess said.

Grillo denied the union’s request to bar the release of three full sections and most of two others in the eight-section Kroll report. Union attorneys said they needed more time to review the three remaining sections.

Though the reports remained sealed Friday morning, Grillo characterized the portion of the Kroll report for which he OK’d release as being about the decision-making process that led to police being sent to the Quad — in his words, “how the university got to the point that it got to.”

— Reach Cory Golden at [email protected] or (530) 747-8046. Follow him on Twitter at @cory_golden

occupyUCD154W

David Buscho, a UC Davis student who was pepper-sprayed on Nov. 18, calls for help. Wayne Tilcock/Enterprise file photo

occupyUCD27W

UC Davis students and other Occupy UCD protesters make a circle around their encampment on the Quad on Nov. 18. Wayne Tilcock/Enterprise file photo

occupyUCD121W

UC Davis police Lt. John Pike pepper-sprays a row of protesters who refused to clear the sidewalk on Nov. 18 on the UCD Quad. Wayne Tilcock/Enterprise file photo

occupy rally065W

UC Davis students, faculty, staff and community members crowd onto the Quad on Monday, Nov. 21, for a rally protesting the pepper-spraying of nonviolent demonstrators. Sue Cockrell/Enterprise file photo

Comments

comments